General Refractories Co. v. Mozier

• Decision Date: 13 June 1930
• Citation: 235 Ky. 252,30 S.W.2d 952
• Parties: GENERAL REFRACTORIES CO. v. MOZIER. SAME v. CARROLL
• Court: Kentucky Court of Appeals

30 S.W.2d 952

235 Ky. 252

GENERAL REFRACTORIES CO. v. MOZIER.

SAME v. CARROLL

Court of Appeals of Kentucky

June 13, 1930

Rehearing Denied Sept. 26, 1930.

Appeals from Circuit Court, Carter County.

Actions by W. M. Mozier and by Will D. Carroll against the General Refractories Company. The actions were heard together, and from judgments for both plaintiffs, defendant appeals.

Reversed and remanded.

John M Theobald, of Grayson, for appellant.

Dysard & Miller, of Ashland, for appellees.

HOBSON C.

The above two cases, which were heard together in the circuit court, will be disposed of in one opinion. The facts are these: The General Refractories Company owns a large plant getting out fire clay in Carter county. It made a contract with Jerry Nolen by which Nolen got out clay at a certain opening, for $1.25 a ton; he hauling the clay in a wagon to the tipple. The company furnished the timber and tracking. He did his own timbering and furnished everything else and bought and used his own powder. After he had worked under this contract for about a year, he sold out to Middleton and Binion, who bought his team and with the consent of the company simply took his contract on the same terms as he had it. After this, in April, 1929, Middleton who owned a farm, wanted to work the team on his farm for a while, and he and Binion agreed to suspend getting out clay as they used the team in hauling the clay. They, like Nolen, bought and used powder, and to prevent anybody from stealing the can of powder which they had, they dug a hole in ground about eighteen inches deep, put the can of powder in it and covered up the can with dirt eight or ten inches thick and left. This was on Thursday. Fred Caldwell, a boy about nine years old, was hiding in the bushes not far off and saw where they hid the powder. On Saturday morning he came back to the place, got the can out of the ground, opened it with a nail, and took a lot of powder out of the can, leaving the can setting there with the rest of the powder in it. He took the powder home and showed it to his mother. On Monday morning he and Leo Mozier, who was only five years old, went back there and filled a quart lard can with powder and started away with it. On their way home they met another boy, a little older than either of them, who had some matches and set the powder afire. The Mozier boy was so badly burned that he died in a few hours. The Carroll boy was seriously burned but did not die. These actions were brought by Will D. Carroll, the father of Fred and W. M. Mozier, the father of Leo, to recover for the loss of the services of his child and the expenses he had sustained, alleging, in substance, that the place where the powder was left was one where children played and that the refractories company was negligent in leaving the powder there where the children had access to it. Fred Carroll states that there were two cans of powder, one in the ground and one setting on top of the ground, about half full of powder, and he also states that the can in the ground was not well covered. On the other hand, the proof by Binion and Middleton is that they only had one can of powder, and this was well buried, as above stated, and buried for the purpose that nobody could steal it; that they had no knowledge that the boy was in the bushes watching them, and it is reasonably clear that the boy knew of the presence of the powder only because he was in the bushes and saw them hiding it. Binion and Middleton expected to come back and go to work in a few days. The mine was upon the side of a cliff. There was no public way near it. The path leading from the hill down to the post office ran about 140 feet from the mouth of the mine where the powder was buried. There were twenty-three houses on the hill in which the miners lived and there was some proof by the plaintiff that the children of the community played around the dump of this mine and sometimes passed near it in a rough path. Under the dump there was a small pool of water, six or seven feet wide and a foot or more deep, in which some fisherman had put minnows. The children also played around this pool, which, according to the map, was some 40 or 50 feet from where the powder was hid. It is undisputed that the powder causing the explosion on Monday came out of the buried can which Fred Caldwell had opened with a nail on Saturday, and that no work was done at the mine after Thursday. Middleton and Binion worked as they pleased and quit when they pleased. No one directed them in their work. They hired help as they pleased and paid their own hands by reporting the amounts to the company, which paid the hands by deducting these amounts from what was coming to Middleton and Binion on the clay they delivered at the tipple at $1.25 a ton. The men that Middleton and Binion hired signed the company's workmen's compensation register. They had worked for the company before and did not sign a new card.

In the circuit court there was a verdict and judgment for the plaintiffs. The defendant insists that the court should have instructed the jury peremptorily to find for it: (1) Because Middleton and Binion were not its servants, but independent contractors, and as such owned and had possession of the powder and the defendant had nothing to do with it and knew nothing about it. (2) Because the powder was buried, and the only reason the trouble occurred was that Fred Caldwell was hiding in the bushes and saw the men bury it and so knew where to look for it.

The first question to be determined is: Were Middleton and Binion servants of the General Refractories Company, and was their act of burying the powder as they did within the scope of their employment? In Diamond Block Coal Co. v. Sparks, 209 Ky. 73, 272 S.W. 31, the court thus laid down the rule as to who is an independent contractor and not a servant:

"In Messmer v. Bell & Coggeshall Co., 133 Ky. 19, 117 S.W. 346, 19 Ann. Cas. 1, we defined an independent contractor as one who is independent of his employer in the doing of his work and who may work when and how he prefers. In later cases, we said that a contractor who contracts to do a piece of work according to his own ideas or in accordance with plans and specifications previously furnished to him by his employer, and who has the right to select and employ his own assistants, the employer having no control over the assistants, and no right to direct the manner of doing the work further than to require that it shall be done in compliance with the plans and specifications under which it is contracted to be done, and who is answerable to the employer for the final result of the work only, is an independent contractor. Covington Co. v. Masonic Temple Co., 176 Ky. 729, 197 S.W. 420, L. R. A. 1918A, 436; D. E. Hewitt Lumber Co. v. Mills, 193 Ky. 443, 236 S.W. 949."

To the same effect, see Ballard, etc., Co. v. Lee, 131 Ky 412, 115 S.W. 732; ...